Kevin Cooper v. Jeanne Woodford, Warden, San Quentin State Prison, San Quentin, California

358 F.3d 1117 KEVIN COOPER, Petitioner, v. JEANNE WOODFORD, Warden, San Quentin State Prison, San Quentin, California, Respondent. No. 04-70578. United States Court of Appeals, Ninth Circuit. Filed February 9, 2004. Before: Mary M. .Schroeder, Chief Judge, Alex Kozinski, A. Wallace Tashima, Barry G. Silverman, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard C. Tallman, Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges. 1 Order; Partial Concurrence and Partial Dissent by Judge Silverman; Dissent by Judge Tallman. ORDER 2 A judge of this Court called for en banc review of the February 8, 2004, three-judge panel order in this case. A majority of the non-recused judges has voted in favor of en banc review of petitioner Kevin Cooper's application to file a second or successive petition for a writ of habeas corpus in the district court. See 28 U.S.C. § 2244 (b)(3)(A). The statute does not allow a petition for rehearing of a denial of authorization to file a second or successive application, but we have sua sponte power to rehear such a denial en banc. Thompson v. Calderon, 151 F.3d 918, 922 (9th Cir. 1998) (en banc), cert. denied, 524 U.S.…

Order; Partial Concurrence and Partial Dissent by Judge SILVERMAN; Dissent by Judge TALLMAN.

ORDER

A judge of this Court called for en banc review of the February 8, 2004, three-judge panel order in this case. A majority of the non-recused judges has voted in favor of en banc review of petitioner Kevin Cooper’s application to file a second or successive petition for a writ of habeas corpus in the district court. See 28 U.S.C. § 2244 (b)(3)(A). The statute does not allow a petition for rehearing of a denial of authorization to file a second or successive application, but we have sua sponte power to rehear such a denial en banc. Thompson v. Calderon, 151 F.3d 918, 922 (9th Cir.1998) (en banc), cert. denied, 524 U.S. 965 , 119 S.Ct. 3 , 141 L.Ed.2d 765 (1998); In re Byrd, 269 F.3d 585 (6th Cir.2001), cert. denied sub nom. Bagley v. Byrd, 534 U.S. 1109 , 122 S.Ct. 913 , 151 L.Ed.2d 880 (2002); Triestman v. United States, 124 F.3d 361 (2d Cir.1997). Cooper is scheduled to be executed at 12:01 a.m. tomorrow morning.

The district court denied Cooper’s first federal petition in 1997, and we affirmed in Cooper v. Calderon, 255 F.3d 1104 (9th Cir.2001), cert. denied, 537 U.S. 861 , 123…

with whom RAWLINSON, Circuit Judge, joins, concurring in part and dissenting in part.

Cooper is either guilty as sin or he was framed by the police. There is no middle ground.

Cooper asserts a freestanding claim of actual innocence. In Herrera v. Collins, 506 U.S. 390, 393 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993), the Supreme Court held that a freestanding claim of actual innocence based on newly discovered evidence was not a ground for habeas corpus relief. See also Turner v. Calderon, 281 F.3d 851, 872 (9th Cir.2002). However, the Supreme Court assumed, without deciding, that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Herrera, 506 U.S. at 417 , 113 S.Ct. 853 . The Court noted that “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id.; see also Schlup v. Delo, 513 U.S. 298, 315-16 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). We have held that “a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt…

with whom Circuit Judge BYBEE joins, dissenting from En Banc Stay Order.

Because the court acts to stay the execution of Kevin Cooper in derogation of the standard set by Congress for evaluating successive habeas corpus petitions, I respectfully dissent. We do not apply the familiar standards as if this case were on direct or collateral review. The court ducks the question whether the standard announced in Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1994), has been superceded by AEDPA. The majority finds that, under either standard, Cooper has made his case for a successive habeas petition. With the greatest respect for the concerns expressed by my colleagues in the majority, I disagree.

For successive appeals like this, 28 U.S.C. § 2244 (b)(2) controls:

Applying this standard, the panel majority (Circuit Judges Rymer and Gould) carefully evaluated the merits of Cooper’s eleventh hour attempt to delay the imposition of his sentence in this 21-year-old case. See Order entered 2/08/04.

Under § 2244(b)(2)(B)®, Cooper must establish that the factual predicate for any constitutional claim “could not have been discovered previously through the exercise of due…